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Young v. Hickory Business Furniture3/21/2000
ty that his salmonella infection triggered or otherwise caused him to develop disabling chronic fatigue syndrome. . . ." Id.
Phillips is strikingly similar to the case before us. Here, plaintiff injured her back at work lifting a chair. Three years later, she was diagnosed with fibromyalgia by Dr. Payne, who is board-certified in Rheumatology. Dr. Payne acknowledged that fibromyalgia is a "very controversial subject in medicine primarily because there's difficulty in objectively studying it [and it is] diagnose . . . based on criteria rather than any type of testing." He also testified that plaintiff met the criteria set out by the American College of Rheumatology for the condition. Dr. Payne then opined that the injury to plaintiff's low back at work "could have or would have aggravated or caused the fibromyalgia." Dr. Payne's reasoning was that he did not know of anything other than her injury at work which might have caused fibromyalgia, but admitted that "a lot of times I have no idea why someone has fibromyalgia. Far and away, fibromyalgia occurs more commonly for unknown reasons. But she had no other reason that I could discover for having it."
The findings and conclusions of the Commission are based entirely on Dr. Payne's unsupported opinion as to causation. Yet on cross-examination, Dr. Payne acknowledged that plaintiff had gallbladder surgery in 1994 and that he had "seen cases of fibromyalgia that occur following operations." Second, Dr. Payne acknowledged that he had done no tests to "rule out other forms of rheumatoid disease or illness," although "those studies need to have been done." Third, although Dr. Payne opined that "fibromyalgia can be either caused or aggravated by trauma," he acknowledged that no epidemiological studies have been done in the field of fibromyalgia to support that opinion. Indeed, a 1996 study published in The Journal of Rheumatology indicates that evidence that trauma causes fibromyalgia is "insufficient to establish causal relationships." Frederick Wolfe, The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability, 23:3 The Journal of Rheumatology 534 (1996). Thus, "whether an injury . . . caused the patient's [fibromyalgia], a retrodictive (or It Did) causal proposition[,] can rarely be determined to be certainly true or certainly false." Id. See also Black v. Food Lion, Inc., 171 F.3d 308, 313 (5th Cir. 1999) ("Experts in the field conclude that the ultimate cause of fibromyalgia cannot be known, and only an educated guess can be made based on the patient's history.")
Dr. Payne summarized the basis for his causation opinion in the following answer:
I think she does have fibromyalgia and I relate it to the accident primarily because, as I noted, it was not there before and she developed it afterwards. And that's the only piece of information that relates the two.
It is well-settled that evidence which "'raises a mere conjecture, surmise, and speculation,'" is insufficient to support a finding of causation. Hinson, 99 N.C. App. at 202, 392 S.E.2d at 659 (citation omitted). Even Dr. Payne agreed that his opinion had only a post hoc, ergo propter hoc (after this, therefore because of this) basis. Black's Law Dictionary defines this post hoc type of analysis as " f or relating to the fallacy of assuming causality from temporal sequence; confusing sequence with consequence." (Black's Law Dictionary 1186 (7th ed. 1999). Reduced to its bare essentials, Dr. Payne's reasoning is that because plaintiff's fibromyalgia appeared three years after her on-the-job low back injury , nothing else appearing, it must have resulted from that prior traumatic injury.
It simply cannot be said, on the facts o
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